Introduced Version
House Bill 3053 History
| Email
Key: Green = existing Code. Red = new code to be enacted
H. B. 3053
(By Delegates Shott and Ellington)
[Introduced March 22, 2013; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §21A-1A-17 of the Code of West
Virginia, 1931, as amended, relating to the labor-management
relations act for the private sector; expanding exclusions
from the term employment in that article generally.
Be it enacted by the Legislature of West Virginia:
That §21A-1A-17 of the Code of West Virginia, 1931, as
amended, be amended and reenacted to read as follows:
ARTICLE 1A. LABOR-MANAGEMENT RELATIONS ACT FOR THE PRIVATE SECTOR.
§21A-1A-17. Exclusions from employment.
_____Notwithstanding any provision of section sixteen of this
article to the contrary, the term "employment" does not include:
(1) Service performed in the employ of the United States or
any instrumentality of the United States exempt under the
Constitution of the United States from the payments imposed by this law, except that to the extent that the Congress of the United
States permits states to require any instrumentalities of the
United States to make payments into an unemployment fund under a
state unemployment compensation law, all of the provisions of this
law are applicable to the instrumentalities and to service
performed for the instrumentalities in the same manner, to the same
extent and on the same terms as to all other employers, employing
units, individuals and services: Provided, That if this state is
not certified for any year by the Secretary of Labor under 26
U.S.C. §3404, subsection (c), the payments required of the
instrumentalities with respect to the year shall be refunded by the
commissioner from the fund in the same manner and within the same
period as is provided in section nineteen, article five of this
chapter with respect to payments erroneously collected;
(2) Service performed with respect to which unemployment
compensation is payable under the Railroad Unemployment Insurance
Act and service with respect to which unemployment benefits are
payable under an unemployment compensation system for maritime
employees established by an Act of Congress. The commissioner may
enter into agreements with the proper agency established under an
Act of Congress to provide reciprocal treatment to individuals who,
after acquiring potential rights to unemployment compensation under
an Act of Congress or who have, after acquiring potential rights to
unemployment compensation under an Act of Congress, acquired rights to benefit under this chapter. Such agreement shall become
effective ten days after the publications which shall comply with
the general rules of the department;
(3) Service performed by an individual in agricultural labor,
except as provided in subdivision (12), section sixteen of this
article, the definition of "employment." For purposes of this
subdivision, the term "agricultural labor" includes all services
performed:
(A) On a farm, in the employ of any person, in connection with
cultivating the soil, or in connection with raising or harvesting
any agricultural or horticultural commodity, including the raising,
shearing, feeding, caring for, training and management of
livestock, bees, poultry and fur-bearing animals and wildlife;
(B) In the employ of the owner or tenant or other operator of
a farm, in connection with the operation, management, conservation,
improvement or maintenance of the farm and its tools and equipment,
or in salvaging timber or clearing land of brush and other debris
left by a hurricane, if the major part of the service is performed
on a farm;
(C) In connection with the production or harvesting of any
commodity defined as an agricultural commodity in section fifteen
(g) of the Agricultural Marketing Act, as amended, as codified in
12 U.S.C. §1141j, subsection (g), or in connection with the ginning
of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs or waterways, not owned or operated for
profit, used exclusively for supplying and storing water for
farming purposes;
(D) (i) In the employ of the operator of a farm in handling,
planting, drying, packing, packaging, processing, freezing,
grading, storing or delivering to storage or to market or to a
carrier for transportation to market, in its unmanufactured state,
any agricultural or horticultural commodity; but only if the
operator produced more than one half of the commodity with respect
to which the service is performed; or (ii) in the employ of a group
of operators of farms (or a cooperative organization of which the
operators are members) in the performance of service described in
subparagraph (i) of this paragraph, but only if the operators
produced more than one half of the commodity with respect to which
the service is performed; but the provisions of subparagraphs (i)
and (ii) of this paragraph are not applicable with respect to
service performed in connection with commercial canning or
commercial freezing or in connection with any agricultural or
horticultural commodity after its delivery to a terminal market for
distribution for consumption;
(E) On a farm operated for profit if the service is not in the
course of the employer's trade or business or is domestic service
in a private home of the employer. As used in this subdivision,
the term "farm" includes stock, dairy, poultry, fruit, fur-bearing animals, truck farms, plantations, ranches, greenhouses, ranges and
nurseries, or other similar land areas or structures used primarily
for the raising of any agricultural or horticultural commodities;
(4) Domestic service in a private home except as provided in
subdivision (13), section sixteen of this article, the definition
of "employment";
(5) Service performed by an individual in the employ of his or
her son, daughter or spouse;
(6) Service performed by a child under the age of eighteen
years in the employ of his or her father or mother;
(7) Service as an officer or member of a crew of an American
vessel, performed on or in connection with the vessel, if the
operating office, from which the operations of the vessel operating
on navigable waters within or without the United States are
ordinarily and regularly supervised, managed, directed and
controlled, is without this state;
(8) Service performed by agents of mutual fund broker-dealers
or insurance companies, exclusive of industrial insurance agents,
or by agents of investment companies, who are compensated wholly on
a commission basis;
(9) Service performed by an agent of a person engaged in the
practice of real estate brokerage who is compensated wholly on a
commission basis;
_____(10) Service performed by an individual in connection with the sale of consumer products (or the solicitation of the sale of
consumer products) in a residence or other place that is not a
permanent commercial establishment performed under a written
contract between the individual and the person for whom such
individual performs such services, which contract provides:
_____ (A) That such individual will not be treated as an employee
for federal tax purposes; and
_____(B) That substantially all of such individual's compensation
is directly related to sales or other output (including the
performance of services) rather than to the number of hours worked;
_____(9) (11) Service performed:
(A) In the employ of a church or convention or association of
churches, or an organization which is operated primarily for
religious purposes and which is operated, supervised, controlled or
principally supported by a church or convention or association of
churches; or
(B) By a duly ordained, commissioned or licensed minister of
a church in the exercise of his or her ministry or by a member of
a religious order in the exercise of duties required by the order;
or
(C) By an individual receiving rehabilitation or remunerative
work in a facility conducted for the purpose of carrying out a
program of either:
(i) Rehabilitation for individuals whose earning capacity is impaired by age or physical or mental deficiency or injury; or
(ii) Providing remunerative work for individuals who because
of their impaired physical or mental capacity cannot be readily
absorbed in the competitive labor market: Provided, That this
exemption does not apply to services performed by individuals if
they are not receiving rehabilitation or remunerative work on
account of their impaired capacity; or
(D) As part of an unemployment work-relief or work-training
program assisted or financed, in whole or in part, by any federal
agency or an agency of a state or political subdivision thereof, by
an individual receiving the work relief or work training; or
(E) By an inmate of a custodial or penal institution;
(10) (12) Service performed in the employ of a school, college
or university, if the service is performed:
(A) By a student who is enrolled and is regularly attending
classes at the school, college or university; or
(B) By the spouse of a student, if the spouse is advised, at
the time the spouse commences to perform the service, that:
(i) The employment of the spouse to perform the service is
provided under a program to provide financial assistance to the
student by the school, college or university; and
(ii) The employment will not be covered by any program of
unemployment insurance;
(11) (13) Service performed by an individual who is enrolled at a nonprofit or public educational institution which normally
maintains a regular faculty and curriculum and normally has a
regularly organized body of students in attendance at the place
where its educational activities are carried on as a student in a
full-time program, taken for credit at the institution, which
combines academic instruction with work experience, if the service
is an integral part of the program and the institution has so
certified to the employer, except that this subdivision does not
apply to service performed in a program established for or on
behalf of an employer or group of employers;
(12) (14) Service performed in the employ of a hospital, if
the service is performed by a patient of the hospital, as defined
in this article;
(13) (15) Service in the employ of a governmental entity
referred to in subdivision (9), section sixteen of this article,
the definition of "employment," if the service is performed by an
individual in the exercise of duties:
(A) As an elected official;
(B) As a member of a legislative body, or a member of the
judiciary, of a state or political subdivision;
(C) As a member of the state National Guard or Air National
Guard, except as provided in section twenty-eight of this article;
(D) As an employee serving on a temporary basis in case of
fire, storm, snow, earthquake, flood or similar emergency;
(E) In a position which, under or pursuant to the laws of
this state, is designated as:
(i) A major nontenured policymaking or advisory position; or
(ii) A policymaking or advisory position the performance of
the duties of which ordinarily does not require more than eight
hours per week; or
(F) As any election official appointed to serve during any
municipal, county or state election, if the amount of remuneration
received by the individual during the calendar year for services as
an election official is less than $1,000;
(14) (16) Service performed by a bona fide partner of a
partnership for the partnership; and
(15) (17) Service performed by a person for his or her own
sole proprietorship.
Notwithstanding the foregoing exclusions from the definition
of "employment," services, except agricultural labor and domestic
service in a private home, are in employment if with respect to the
services a tax is required to be paid under any federal law
imposing a tax against which credit may be taken for contributions
required to be paid into a State Unemployment Compensation Fund, or
which as a condition for full tax credit against the tax imposed by
the federal Unemployment Tax Act are required to be covered under
this chapter.
NOTE: The purpose of this bill is to make certain
clarifications of the definition of the term employment as
contained in this article.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.